Lessons of Regional Harmonization of Tax System & Tax Incentives and WTO rules

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1 Lessons of Regional Harmonization of Tax System & Tax Incentives and WTO rules Kiyoshi Nakayama Tokyo, Japan April 24, 2014 Views are authors alone, and should not be attributed to the IMF, its Executive Boards, or its management 1

2 Context ASEAN will form a common market the ASEAN Economic Community (AEC) in 2016 SAARC aims to make customs zero in 2016 (South Asian Free Trade Area (SAFTA) )and aims at a single market in 2020 (?) Tax harmonization/coordination is key to enhance the functions and operation of a single market. Then, what should/could be done in tax areas? Experiences in other regional economic community could provide lessons. WTO rules could affect export-linked tax incentives WTO rules could set a base for regional harmonization of tax incentives 2

3 Outline Economic Integration Process Why tax harmonization / coordination is necessary for Regional Integration? Overview of efforts to harmonize/coordinate tax system in other regional economic communities - EU - WAEMU - SADC Lessons Should Intra-region capital flows be tax free? WTO Rules That Affect Tax Incentives Tax Incentives Contingent on Exports in Asian Countries WTO Rules-compliant Tax Incentives? 3

4 Economic Integration Process 1) Preferential trade area 2) Free trade area 3) Custom Union 4) Common market 5) Economic and monetary union 6) Complete economic integration (Balassa) 4

5 Why Tax Harmonization / Coordination is Necessary for Regional Integration? To avoid tax distortions to the location of economic activity within the single market. To ensure that the single market operates as smoothly. Tax harmonization/coordination are centered on removing obstacles to the smooth functioning of the single market: free movement of goods, services and capital. To stabilize revenue 5

6 Overview of efforts to harmonize tax system in other regional economic communities EU No need for an across the board harmonization of tax systems, and Member States are free to choose the tax system. (the subsidiarity principle of the EC Treaty But, Member States are refrained from introducing any new harmful tax measures and required to amend the existing harmful tax measures (Code of Conduct soft law) Prohibition of State Aid could have stronger impacts on tax incentives. VAT - Maximum rate: 25%; Minimum standard rate: 15%; - Member States may apply one or two reduced rates of not less than 5% Excises - Alcohol beverages: minimum rate e.g. Beer = per liter; - Cigarettes: minimum rate= 57 % of a retail price + new proposal 6

7 EU (cont.) Paying agents (e.g. banks) need to either report interest income received by a resident in other EU Member States or levy withholding tax on the interest income (Saving Directive) => Automatic exchange of information Dividends paid by a subsidiary company (sub) to its parent company (parent) are exempted from withholding tax if the parent hold at least 10% of the shares in the sub; the Member State of the parent had either: exempt profits distributed by the sub from any taxation or impute the tax already paid in the Member State of the sub against its own tax. (Parent-Subsidiary Directive) Common Corporate Consolidated Tax Base (CCCTB) -ECOFIN s report to European Council (2013) European Court of Justice Powerful guardian of EC Treaty 7

8 WAEMU (West African Economic and Monetary Union) [ Benin, Bukina Faso, Cote d Ivoire, Mali, Niger, Niger, Senegal, Togo, and Guinea-Bissau] Macro-fiscal condition: primary balance should not exceed zero; debt-to-gdp ratio should not exceed 70 percent; tax revenue-to-gdp should be at least 17 percent Single currency (CFAF)(before formation of WAEMU) Custom Union (2000) VAT - Single positive VAT rate between 15 and 20 percent - Registration threshold - Common rules for tax base Excises - Minimum and maximum tax rate by type of goods 8

9 WAEMU (cont.) CIT - Single rate between 25 to 30 percent - Standard CIT base Portfolio income - Withholding tax on dividends: 10 to 15 percent; interest: 0 to 6 percent: capital gains: 0 to 7 percent Multilateral tax treaty - Ceiling rate on interest and royalties: 15 percent; dividends: 10 percent No directives/regulation on tax incentives provided by nontax laws Commission nor member states have never brought a case of non compliance with tax directives to the regional Court of Justice 9

10 SADC (Southern African Development Community) [Angola, Botswana, the Democratic Republic of Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, United Republic of Tanzania, Zambia and Zimbabwe] SADC Tax Database ( Guidelines on tax incentives - State Parties shall endeavour to avoid (a) harmful tax competition (Protocol Annex 3, Article 4) Double Taxation Agreement - Model DTA for SADC - State Parties shall establish amongst themselves a comprehensive network of DTA (Article 5) Indirect taxes - Each State party shall, in an effort to minimise..smuggling harmonise the application of excise rates.. (Article 6(5)) - State parties shall harmonize..vat regimes (Article 6(10)) Dispute settlement mechanism 10

11 Lessons Without strong political commitment, it is difficult to achieve effective harmonization / coordination. Priority should be given to excises and CIT and tax incentives. Soft law approaches such as Code of Conduct are pragmatic, but rely on goodwill and peer pressure, and are thus inherently difficult to enforce. Information sharing is a pre requisite for any harmonization / coordination efforts. Institutional arrangements and surveillance mechanism is key to achieve and maintain tax harmonization / coordination Tax harmonization / coordination should cover de facto tax laws 11

12 Should Intra-region capital flows be tax free? A DTA network, intra-region DTA or bilateral DTAs need to cover all community members. It is desirable that bilateral DTAs among member states be identical. If an intra-region or bilateral DTAs exempt source country taxation on investment income, it would facilitate further integration. However, without the harmonization of CIT structure, in particular, tax incentives, it would induce further concentration of FDI to a business friendly member state or provide an opportunity for tax avoidance. Proliferation of sandwich schemes in EU could indicate a risk of exempting source country taxation on dividends. 12

13 WTO Rules That Affect Tax Incentives Agreement on Subsidies and Countervailing Measures (ASCM) Article 3:. the following subsidies, within the meaning of Article 1 ((ii) government revenue that is otherwise due is foregone or not collected (e.g. fiscal incentives such as tax credits)), shall be prohibited: (a) subsidies contingent, in law or in fact, whether solely or as one of several other conditions, upon export performance, including those illustrated in Annex I; => Tax incentives contingent on exports could be regarded as export subsidies Tax incentives contingent on use of domestic products National Treatment Principle in GATT Article 3 13

14 Tax Incentives Contingent on Exports in Asian Countries Examples 1. A company engaged in manufacturing is eligible for allowance for increased exports that is tax exemption of 10%/15% of the value of increased exports. 2. A company that exports more than 70 percent of its production is eligible fro CIT holidays. 3. A company located in a designated economic zone, which aims to promote exports but has no minimum export requirements, is eligible for CIT holidays. 4. A company located in an export processing zone is eligible for exemption of import duties and VAT for its import.

15 WTO Rules-compliant Tax Incentives? WTO does not make a decision unless a member bring a case to the Panel. A gray export-contingent tax incentives brings in juridical uncertainty that may deter investment. Need to minimize risks for export enterprises to have tax incentives cancelled unexpectedly UN s Least Developed Countries and ASCM Annex VII(b) countries are exempt from prohibition of export subsidies. Complying with WTO rules could set a base for regional harmonization of tax incentives. 15

16 References Balassa, Bela, 1961, The Theory of Economic Integration, London: Allew and Unwin Bird, Richard, 2008, Tax Incentives for Foreign Investment in Latin America and the Caribbean: Do They Need to Be Harmonized, Taxation and Latin American Integration (Washington: Inter-American Development Bank Mansour, Mario and Rota-Graziosi,Gregiire, 2013, Tax Coordination, Tax Competition, and Revenue Mobilization in the West African Economic and Monetary Union, Working Paper WP13/163 (Washington: International Monetary Fund), International Tax Notes (April 14, 2014). Nicodeme, Gaetan, Corporate Tax Competition and Coordination in the European Union: What Do We Know? Where Do We Stand? Economic papers No. 250 (European Communities) Peters, Amos, 2002, Exploring Caribbean Tax Structure and Harmonization Strategies, IBFD Bulletin SADC, Finance and Investment Protocol Information Brochure 16